Contact: The White House, Office of the Press Secretary,
202-456-2100
Oct. 4, 1993
MEMORANDUM FOR HEADS OF DEPARTMENTS AND AGENCIES
SUBJECT: The Freedom of Information Act
I am writing to call your attention to a subject that is of great
importance to the American public and to all Federal departments and
agencies -- the administration of the Freedom of Information Act, as
amended (the "Act"). The Act is a vital part of the participatory
system of government. I am committed to enhancing its effectiveness
in my Administration.
For more than a quarter century now, the Freedom of Information
Act has played a unique role in strengthening our democratic form of
government. The statute was enacted based upon the fundamental
principle that an informed citizenry is essential to the democratic
process and that the more the American people know about their
government the better they will be governed. Openness in government
is essential to accountability and the Act has become an integral
part of that process.
The Freedom of Information Act, moreover, has been one of the
primary means by which members of the public inform themselves about
their government. As Vice President Gore made clear in the National
Performance Review, the American people are the Federal Government's
customers. Federal departments and agencies should handle requests
for information in a customer-friendly manner. The use of the Act by
ordinary citizens is not complicated, nor should it be. The
existence of unnecessary bureaucratic hurdles has no place in its
implementation.
I therefore call upon all Federal departments and agencies to
renew their commitment to the Freedom of Information Act, to its
underlying principles of government openness, and to its sound
administration. This is an appropriate time for all agencies to take
a fresh look at their administration of the Act, to reduce backlogs
of Freedom of Information Act requests, and to conform agency
practice to the new litigation guidance issued by the Attorney
General, which is attached.
Further, I remind agencies that our commitment to openness
requires more than merely responding to requests from the public.
Each agency has a responsibility to distribute information on its own
initiative, and to enhance public access through the use of
electronic information systems. Taking these steps will ensure
compliance with both the letter and spirit of the Act.
(s) William J. Clinton
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Oct. 4, 1993
MEMORANDUM FOR HEADS OF DEPARTMENTS AND AGENCIES
Subject: The Freedom of Information Act
President Clinton has asked each Federal department and agency to
take steps to ensure it is in compliance with both the letter and the
spirit of the Freedom of Information Act (FOIA), 5 U.S.C. 552. The
Department of Justice is fully committed to this directive and stands
ready to assist all agencies as we implement this new policy.
First and foremost, we must ensure that the principle of openness
in government is applied in each and every disclosure and
nondisclosure decision that is required under the Act. Therefore, I
hereby rescind the Department of Justice's 1981 guidelines for the
defense of agency action in Freedom of Information Act litigation.
The Department will no longer defend an agency's withholding of
information merely because there is a "substantial legal basis" for
doing so. Rather, in determining whether or not to defend a
nondisclosure decision, we will apply a presumption of disclosure.
To be sure, the Act accommodates, through its exemption structure,
the countervailing interests that can exist in both disclosure and
nondisclosure of government information. Yet while the Act's
exceptions are designed to guard against harm to governmental and
private interests, I firmly believe that these exemptions are best
applied with specific reference to such harm, and only after
consideration of the reasonably expected consequences of disclosure
in each particular case.
In short, it shall be the policy of the U.S. Department of Justice
to defend the assertion of a FOIA exemption only in those cases where
the agency reasonably foresees that disclosure would be harmful to an
interest protected by that exemption. Where an item of information
might technically or arguably fall within an exemption, it ought not
to be withheld from a FOIA requester unless it need be.
It is my belief that this change in policy serves the public
interest by achieving the Act's primary objective -- maximum
responsible disclosure of government information -- while preserving
essential confidentiality. Accordingly, I strongly encourage your
FOIA officers to make "discretionary disclosures" whenever possible
under the Act. Such disclosures are possible under a number of FOIA
exemptions, especially when only a governmental interest would be
affected. The exemptions and opportunities for "discretionary
disclosures" are discussed in the Discretionary Disclosure and Waiver
section of the "Justice Department Guide to the Freedom of
Information Act." As that discussion points out, agencies can make
discretionary FOIA disclosures as a matter of good public policy
without concern for future "waiver consequences" for similar
information. Such disclosures can also readily satisfy an agency's
"reasonable segregation" obligation under the Act in connection with
marginally exempt information, see 5 U.S.C. 552(b), and can lessen an
agency's administrative burden at all levels of the administrative
process and in litigation. I note that this policy is not intended
to create any substantive or procedural rights enforceable at law.
In connection with the repeal of the 1981 guidelines, I am
requesting that the Assistant Attorneys General for the Department's
Civil and Tax Divisions, as well as the United States Attorneys,
undertake a review of the merits of all pending FOIA cases handled by
them, according to the standards set forth above. The Department's
litigating attorneys will strive to work closely with your general
counsels and their litigation staffs to implement this new policy on
a case-by-case basis. The Department's office of Information and
Privacy can also be called upon for assistance in this process, as
well as for policy guidance to agency FOIA officers.
In addition, at the Department of Justice we are undertaking a
complete review and revision of our regulations implementing the
FOIA, all related regulations pertaining to the Privacy Act of 1974,
5 U.S.C. 552a, as well as the Department's disclosure policies
generally. We are also planning to conduct a Department-wide "FOIA
Form Review." Envisioned is a comprehensive review of all standard
FOIA forms and correspondence utilized by the Justice Department's
various components. These items will be reviewed for their
correctness, completeness, consistency and particularly for their use
of clear language. As we conduct this review, we will be especially
mindful that FOIA requesters are users of a government service,
participants in an administrative process, and constituents of our
democratic society. I encourage you to do likewise at your
departments and agencies.
Finally, I would like to take this opportunity to raise with you
the longstanding problem of administrative backlogs under the Freedom
of Information Act. Many Federal departments and agencies are often
unable to meet the Act's ten-day time limit for processing FOIA
requests, and some agencies -- especially those dealing with
high-volume demands for particularly sensitive records -- maintain
large FOIA backlogs greatly exceeding the mandated time period. The
reasons for this may vary, but principally it appears to be a problem
of too few resources in the face of too heavy a workload. This is a
serious problem -- one of growing concern and frustration to both
FOIA requesters and Congress, and to agency FOIA officers as well.
It is my hope that we can work constructively together, with
Congress and the FOIA-requester community, to reduce backlogs during
the coming year. To ensure that we have a clear and current
understanding of the situation, I am requesting that each of you send
to the Department's Office of Information and Privacy a copy of your
agency's Annual FOIA Report to Congress for 1992. Please include
with this report a letter describing the extent of any present FOIA
backlog, FOIA staffing difficulties and any other observations in
this regard that you believe would be helpful.
In closing, I want to reemphasize the importance of our
cooperative efforts in this area. The American public's
understanding of the workings of its government is a cornerstone of
our democracy. The Department of Justice stands prepared to assist
all federal agencies as we make government throughout the executive
branch more open, more responsive, and more accountable.
/s/ Janet Reno